Jisha v Secretary of State for the Home Department

A human rights claim raised in an immigration appeal may qualify for the purposes of paragraph 353 of the Immigration Rules where the one-stop notice directed the claimant to include such grounds in the notice of appeal. Service on the AIT, followed by service by the AIT on the Secretary of State under the applicable Procedure Rules, satisfied the statutory service requirement in the circumstances. The expression “human rights claim” in paragraph 353 is not necessarily confined to the definition in section 113(1) of the Nationality, Immigration and Asylum Act 2002. A procedural failure to assess further submissions under paragraph 353 cannot be excused because the underlying claim appears weak. There is no requirement that a claimant expressly identify paragraph 353 when making a second claim.

The claimant, a Bangladeshi national, appealed against refusal of leave to enter and raised an Article 2 of Protocol 1 education claim before the Asylum and Immigration Tribunal. The Immigration Judge considered and dismissed that claim. The claimant later made an Article 8 private-life application, which the Secretary of State treated as a first human rights claim rather than considering whether it amounted to a fresh claim under paragraph 353 of the Immigration Rules.

The claimant sought judicial review, arguing that the earlier claim was a human rights claim and that the later application therefore required consideration under paragraph 353. She also argued that the decision should have been made with an appealable removal decision. The central issue was whether the earlier claim had been made to the Secretary of State for the purposes of section 113(1) of the Nationality, Immigration and Asylum Act 2002.

1. Ground 1 succeeded. The decision of 20 July 2009 was set aside. The court declared that the Article 2 of Protocol 1 claim raised in the claimant’s December 2007 appeal was a human rights claim for the purposes of paragraph 353 of the Immigration Rules.
2. Section 113(1) of the Nationality, Immigration and Asylum Act 2002 defines “human rights claim” for Part 5 of the Act. Paragraph 353 operates in the wider context of the Immigration Rules, so the statutory definition does not necessarily govern its meaning in every case. In any event, the statutory definition was satisfied here.
3. The one-stop notice directed the claimant to include any human rights grounds in her notice of appeal, even if they had not previously been made to the Secretary of State. Under rules 6(1) and 55(1), the notice was filed with the AIT. Under paragraph 12(1) of the Procedure Rules, the AIT was required to serve it on the Secretary of State. The AIT was therefore a designated place for service in the circumstances, and the Secretary of State received the claim through the prescribed procedure. The claim was considered and dismissed by the Immigration Judge, although it was weak and only faintly pursued.
4. The decisions in SS and others (Ankara Agreement – no in-country right of appeal) Turkey [2006] UKAIT 00074 and R (on the application of Garfield Rainford) v Secretary of State for the Home Department [2008] EWHC 2474 (Admin) were distinguishable. Neither involved a one-stop notice or considered the effect of paragraph 12 of the Procedure Rules in that context.
5. Paragraph 353 applied to the later claim whether or not the claimant expressly referred to it. The apparent weakness of the later Article 8 claim did not cure the defendant’s significant procedural error.
6. Ground 2 was refused. Any future removal directions would be governed by paragraphs 8–11 of the Immigration Act 1971 and would not constitute an immigration decision under the 2002 Act. The application for a wasted costs order was dismissed.

First-instance judicial review. The judgment describes the claimant’s earlier appeal before the AIT, the refusal of reconsideration, and the subsequent Secretary of State decision under review.